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SUTTON v. WEST CHESTER AREA SCHOOL DISTRICT

May 5, 2004.

JOHN and GAIL SUTTON, ET AL.
v.
WEST CHESTER AREA SCHOOL DISTRICT, ET AL



The opinion of the court was delivered by: JOHN PADOVA, District Judge

MEMORANDUM

Plaintiffs, John and Gail Sutton, have brought this action on their own behalf, and on behalf of their minor daughter, Danielle Sutton, pursuant to 42 U.S.C. § 1983, 29 U.S.C. § 794, 42 U.S.C. § 12101 et seq., and state common law against the West Chester Area School District (the "School District"), Dr. Lee McFadden, Dr. William Duffy, Dr. Alan Elko, and Karen Smith. Plaintiffs allege that Defendants' attempt to enter into a Service Agreement pursuant to Section 504 of the Rehabilitation Act ("Section 504") with Plaintiffs, in order to accommodate Plaintiffs' desire that their minor daughter not be exposed to chemical pesticides used by the School District at its schools, was an abuse of process and violated their substantive due process rights under the Fourteenth Amendment and their First Amendment rights to free speech. Before the Court is Defendants' Motion for Summary Judgment. For the reasons which follow, Defendants' Motion is granted.

I. BACKGROUND

  Plaintiffs John and Gail Sutton, and their minor daughter Danielle, lived in the School District between November 1998 and January 2002. (Danielle Sutton Dep. at 16, Gall Sutton Dep. at 43.) All three of the Suttons suffer from multiple chemical sensitivities and Danielle is sensitive to pesticides. (Pls.' Mem. at 2, Gail Sutton Dep. at 17.) In February of 2000, the School District announced a plan to begin spraying pesticides on the playing fields at School District schools in the spring of that year. (Danielle Sutton Dep. at 42, Gail Sutton Dep. at 19-21, Pls.' Ex. A.) The School Board voted to approve the spraying plan during a March 2000 School Board meeting. (Danielle Sutton Dep. at 40.) John, Gail and Danielle Sutton protested the use of pesticides at that School Board meeting by standing in front of the building where the meeting took place with signs protesting the use of pesticides. (Id.) They also gathered signatures on petitions in opposition to the School District's plan to spray pesticides. (Danielle Sutton Dep. at 42, Pls.' Ex. B.) The School Board approved the spraying plan and the School District began to spray in the spring of 2000, while Danielle Sutton was in the eighth grade. (Gail Sutton Dep. at 21.) Due to Danielle's sensitivity to pesticides, the Suttons asked her gym teacher to keep her inside if there was spraying. (Gail Sutton Dep. at 22.)

  Danielle Sutton was assigned to start ninth grade at East High School beginning in the fall of 2000. (Gail Sutton Dep. at 24.) East High School is located in a rural area across the street from a working farm. During the summer of 2000, prior to Danielle's entering ninth grade, the Suttons asked the School District for a Section 504 Service Agreement to allow her to fulfill her gym requirement away from the school. (Gail Sutton Dep. at 25.) They also asked that the school not be sprayed with pesticides and that Danielle be allowed to transfer to B. Reed Henderson ("Henderson") High School, which is located in a more urban area. (Gail Sutton Dep. at 25-26.) On August 15, 2000, Dr. William Duffy, the School District's Assistant Director of Pupil Services and Special Education, sent a letter to the Suttons asking that they provide a medical evaluation and diagnosis for Danielle for use in determining her eligibility for a Section 504 Service Agreement. (Defs.' Ex. F at S-14.) Danielle's doctor, Marc Cotler, M.D., sent a letter to the School District on August 23, 2000, stating that Danielle has a "very strong history of adverse reactions to numerous environmental chemicals (cleaning agents, etc.) and pesticides. These reactions have ranged from migraine headaches to sinusitis to airway obstruction." (Defs.' Ex. F at S-16.) Dr. Cotler strongly recommended that Danielle:
not have gym on lawns that have been sprayed with pesticides nor to be at school on days where the farm across the street has freshly applied pesticides to their fields. It is my medical opinion that many of Danielle's symptoms and signs of multiple chemical sensitivity are precipitated by agents in the sprays and antigens that are present in aerosol sprays and odors. Although many people do not have problems with chemicals in everyday exposure, such is not the case with Danielle, and our attention to her special needs should allow her to participate in school and school activities. (Defs.' Ex. F at S-16, emphasis in original.)
  On August 22, 2000, John Sutton wrote a letter to the Principal of East High School, Dr. Lee McFadden, asking to be notified of any and all use of pesticides, herbicides, insecticides, and fungicides used at the school. (Defs.' Ex. F at S-15.) On August 25, 2000, John Sutton sent a letter to Dr. McFadden demanding certain accommodations because of Danielle's multiple chemical sensitivity:
 
Our daughter is not permitted to go out on the lawn/fields for gym, picnics or any activity because of the pesticides. (Other than an emergency reason for being outside) She can sit in the library or in some classroom but she is not allowed on those fields/lawn. Call it 504 or excused from gym or whatever you call it.
Our daughter can take indoor gym if you use a ball not used outdoors, if there is no shallack [sic] odor noticeable to us and if substantial time has elapsed since the last pesticiding [sic] on the fields so that there is no "tracking" in of pesticides.
Multiple Chemical Sensitivity is a disability under 504. OCR can verify this. So are allergies. So is hypersensitivity to pesticides which is MCS. We wanted to find out if our daughter was in any classroom that had been termited [sic]. (and when it was termited [sic]) We wanted our daughter to be able to have a safe bus stops [sic] the same stop she had last year; for safety reasons and for chemical sensitivity reasons.
Will you or will you not do a 504 service agreement or an independent education program agreement and/or independent contract? We ask that the district stop using pesticides on fields. We have filed with OCR regarding this matter. (of the district using pesticides on the fields) Rather than belabor the issue, we will take the reimbursement of summer school issue to court.
There is a significant half life for pesticides. They do not just "disappear". They persist in the soil for some time.
Danielle is not allowed to sit on the gym floor. She is not allowed to wear pinnies that we did not personally purchase.
She is not allowed to use exercise machines or equipment or lift weights.
(Defs.' Ex. F at S-18.)

  On August 28, 2000, Karen Smith, the school nurse at East High School, sent a memo to teachers and administrators at East High School, including Dr. McFadden, stating that "Danielle has a history of severe adverse reactions to numerous environmental chemicals and pesticides" and that she "may NOT go outside for physical education or other activities in grass covered areas." (Defs.' Ex. F at S-19.) Also on August 28, 2000, the School District proposed a Section 504 Service Agreement for Danielle Sutton. The proposed Service Agreement stated that Danielle has been diagnosed with multiple chemical sensitivity, and has "a history of adverse reactions to numerous environmental chemicals. These reactions, according to Dr. Cotler, have ranged from migrane [sic] headaches to sinusitis to airway obstruction." (Defs.' Ex. F at S-20.) The proposed Service Agreement further stated that the School District would provide the following accommodations: (1) Danielle will have access to the school nurse if any symptoms are manifested and the school nurse will contact Danielle's parents.

 
(2) Danielle will not participate in outdoor physical education activities, instead Danielle will have adaptive PE. This will consist of appropriate activities in the Fitness Room.
(3) Danielle will be provided with a chair during those times when sitting on the gym floor is necessary.
(4) During fire drills or emergency evacuations, Danielle will report to the school nurse who is located in the parking lot outside the main entrance of East High School.
(5) The district will notify Mr. and Mrs. Sutton within 48-72 hours prior to the district spraying herbicides or pesticides at East High School.
(6) The district is willing to offer Danielle Sutton placement at B. Reed Henderson High School. The location of this high school is in an urban area of West Chester, there are no farms or fields adjacent to the campus.
(7) The district will provide Danielle with balls and other equipment that have not been used outside.
(Defs.' Ex. F at S-20.) The proposed Service Agreement also states that, in the event of an emergency, the school nurse "will contact Danielle's parents, if symptoms are severe enough the school nurse will call 911." (Def.'s Ex. F at S-20.)
  On September 6, 2000, John Sutton sent a letter to the School District objecting to the proposed Service Agreement for the following reasons: the Suttons would not allow Danielle to use exercise equipment because of a previous injury and wanted to substitute gym class with dance; Danielle would look like an outcast if she sat in a chair during gym; there was no guarantee that balls used indoors had no pesticides on them; Danielle would not be permitted to go into the gym unless the school could guarantee that no pesticide residues had been tracked in to the gym; the Suttons wanted Danielle's bus stop to be moved; and the Suttons would not agree to allow the school nurse to call 911 in the event of an emergency because they do not use the local hospital. (Defs.' Ex. F at S-26.) In response, the School District proposed two modified Service Agreements, one for East High School and one which permitted her to transfer to Henderson High School. The proposed modified Service Agreement for Henderson High School stated that the School District would provide the following accommodations and emergency procedures:
1. The WSACD is giving Danielle an exception to attend B. Reed [sic] High School.
2. Danielle will not participate in outdoor physical education activities; instead she will have an adaptive physical education program. This will consist of appropriate activities in the Fitness Room. This will include directed activities using a Nautilus Machine, Treadmill, Exercycle, stretching exercises and pushups. These activities will be appropriate for a student in the ninth grade.
3. Danielle will be provided with balls and other equipment that has [sic] been prepared for use inside and has [sic] not been used outside.
4. During emergency evacuations of the building (e.g. fire drills, etc.), Danielle will report to the school nurse who is located outside the west entrance to B. Reed Henderson High School in the parking lot.
5. The WCASD will notify Danielle's parents within 48 to 72 hours prior to the spraying of herbicides or pesticides by school district personnel or district representatives.
The following procedures will be followed in the event of a medical emergency:
1. Danielle will have access to the school nurse if any symptoms are manifested.
2. The school nurse will access Danielle and contact her parents. In addition, the nurse will follow all established School District Guideline [sic] regarding emergencies. This shall include calling 911 and administering epinephrine through an "epipen."
(Defs.' Ex. F at S-27.) The proposed modified Service Agreement for East High School is identical, except with respect to emergency evacuations. (Defs.' Ex. F at S-28.) The East High School Service Agreement stated that "During emergency evacuations of the building (e.g. fire drills, etc.), Danielle will report to the school nurse who is located outside the main entrance in the parking lot." (Defs.' Ex. F at S-28.)

  After receiving the proposed modified Service Agreements, the Suttons withdrew their request for a Section 504 Service Agreement. They contend that they withdrew their request because they didn't want to label their daughter as disabled and because the adaptive physical education provided in the proposed modified Service Agreements was at odds with the School District's practice of allowing parents a wide range of physical activities to choose from. (Gail Sutton Dep. at 26, Pls.' Mem. at 3, Pls.' Ex. D.) They also disagreed with the provision that the school nurse would be authorized to inject Danielle with epinephrine. (Pls.' Mem. at 4, Pis.' Ex. F.) The Suttons claimed that the use of epinephrine would be medically inappropriate for Danielle and provided the School District with a report from her doctor, Marc Cotler, M.D., to that effect. (Pls.' Mem. at 4, Pls.' Ex. G.)

  On September 14, 2000, after they withdrew their request for a Section 504 Service Agreement, the Suttons sent a note to Dr. McFadden stating that "Danielle is not to take gym or go outside on the fields or go to health/fitness room. Please send her to the library." (Defs.' Ex. F at S-31.) On October 2, 2000, the Suttons refused to fill out a Student Emergency Card because they insisted that no medication be given to Danielle, including emergency medication. (Defs.' Ex. F at S-33.) Gail Sutton told Karen Smith that she believed that Dr. Duffy was "`practicing medicine without a license' by putting those emergency measures into the 504 Plan." (Defs.' Ex. F at S-33.) On October 10, 2000, John Sutton sent a note to Dr. Duffy and Mrs. Payne, then the School District's Section 504 coordinator, stating that:
We have repeatedly told you we do not want your 504 plan because it is inadequate and also attempts to "practice medicine without a license." We have a workable more acceptable agreement with the principal of the high school. It is very peculiar that at first you refused to accept the idea of a 504 plan and then you try to force us to take it when we no longer need or want it. Pesticides are poisons they are not allergies. Your medical reference in the plan is, also, practicing incorrect medicine without a license.
(Defs.' Ex. F at S-34.) Because the Suttons continued to ask for accommodations for Danielle after they withdrew their request for a Section 504 Service Agreement, and complained to the Office of Civil Rights that a Section 504 Service Agreement was not in place, the School District submitted the matter for an administrative due process hearing. (Defs.' Ex. D at 12.) The hearing was held on November 20, 2000. (Defs.' Ex. E.) The Suttons objected to the hearing, but participated in it by cross-examining witnesses called by the School District. (See Defs.' Ex. E.) In a Decision issued on December 3, 2000, the Special Education Hearing Officer found that there was no dispute that Danielle has multiple chemical sensitivities. (Defs.' Ex. D at 10.) The Hearing Officer also found that the Section 504 Service Agreement offered by the School District is appropriate and meets the test of reasonableness. (Defs.' Ex. D at 13.) The Hearing Officer specifically stated that he did not think that the school nurse would use an epipen on Danielle "capriciously." (Defs.' Ex. D at 14.) He also stated that the Service Agreement would give Danielle the opportunity to attend a different high school that was not surrounded by fields and does not have a working farm across the street. (Defs.' Ex. D at 13.) The Suttons continued to object to the implementation of the proposed Service Agreement, but sought to have Danielle transferred out of East High School. (Pls.' Mem. at 6, Pls.' Exs. H-L.)

  The School District informed the Suttons that the Section 504 Service Agreement would be implemented at East High School on February 27, 2001, following the expiration of the 60 day period to appeal the decision of the Hearing Officer. (Pls.' Ex. J.) The Suttons did not appeal the decision of the Hearing Officer. On March 28, 2001, the School District denied the Suttons' request to transfer Danielle to Henderson High School because there was a valid Section 504 Agreement in place at East High School and because "it would not follow educationally sound practice to uproot Danielle and have her start anew." (Pls.' Ex. L.) Dr. Duffy stated in his March 28, 2001 letter to the Suttons that the 504 team would consider transferring Danielle to Henderson prior to the 2001-2002 school year. (Pls.' Ex. L.) In April 2001, the Suttons withdrew Danielle from East High School in order to home school her because she: "could not transfer to Henderson, the farm was about to spray toxic pesticides and the school was about to spray toxic pesticides and the forced 504 was being implemented allowing the nurse to inject [Danielle] with epinephrine. . . . " (John Sutton Aff. ¶ 11.)

 II. LEGAL STANDARD

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.

  A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact." Boykins v. Lucent Technologies, Inc., 78 F. Supp.2d 402, 407 (E.D. Pa. 2000). Indeed, evidence introduced to defeat or support a motion for summary judgment must be capable of being admissible at trial. Callahan v. AEV. Inc., 182 F.3d 237, 252 n.11 (3d Cir. 1999)(citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1234 n.9 (3d Cir. 1993)). The Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.

 III. DISCUSSION

  John and Gail Sutton have asserted causes of action on behalf of themselves and on behalf of Danielle Sutton, alleging abuse of process under the Rehabilitation Act and the Americans with Disabilities Act ("ADA"), violation of their civil and fundamental rights, retaliation and harassment in violation of the First Amendment, intentional infliction of emotional distress, abuse of power, and conspiracy to violate Danielle's civil rights in violation of 42 U.S.C. § 1985. All of these causes of action are based upon the School District's request for a due process hearing in order to resolve its dispute with the Suttons regarding the proposed Section 504 Service Agreement, and implementation of the Section 504 Service Agreement after it was approved by the Hearing Officer. Defendants have moved for summary judgment on all remaining counts of the Amended Complaint.*fn1 A. Counts I and VI

  In Counts I and VI of the Amended Complaint, John and Gall Sutton claim that the School District willfully abused process, and abused its power and authority, in violation of Section 504 and the ADA, by forcing them into a Section 504 Service Agreement.*fn2 Count I is brought by John and Gail Sutton on their own behalf, Count VI is brought by John and Gail Sutton on behalf of Danielle Sutton. Defendants argue that the School District is entitled to summary judgment on Counts I and VI of the Amended Complaint because the evidence of record does not support a claim for abuse of process pursuant to either the Section 504 or the ADA. ...


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